What might the election mean for environmental law?

Three quick thoughts on the implications of the election for environmental law in general, and greenhouse gas regulation in particular:

(1) Congress will matter less. A stronger Democratic majority in the Senate and a reelected Obama mean that the courts are probably the only thing standing between full implementation of EPA’s carbon dioxide regulations under the Clean Air Act. It will be that much harder for Republicans to peel off Democrats in the Senate to strip funding or otherwise block those regulations, since the Democrats majority in the Senate has expanded. I can identify only six Democratic senators (Rockefeller and Manchin from West Virginia; Begich from Alaska; Landrieu from Louisiana; newly elected Heitkamp from North Dakota; and maybe Baucus from Montana) who are likely to vote for any such efforts. That’s still well short of what’s needed to end a filibuster of a stand alone bill. It’s possible that some sort of rider could be added to an appropriations or budget bill that has to pass (and therefore a majority vote is what matters), but getting all six to defect on such a high stakes vote seems unlikely. (And you would need all six, since a tie would be broken by Vice President Biden.) And there’s still the possibility that Obama would veto any bill to strip EPA authority over greenhouse gases. As for the courts, they have already upheld the tailoring rule, which was probably the most legally questionable part of the EPA regulations.

(3) Of course, none of these issues exist in a vacuum. One question is: if the Administration pushes greenhouse gas regulation under the Clean Air Act, and Congress can’t stop it, does that increase the chances of some sort of grand bargain on a wide range of issues? For instance, there has been a little bit of speculation recently that there might be a carbon tax implemented as part of the resolution of the “fiscal cliff” coming in January. Or perhaps fossil fuel interests would be willing to trade away having a carbon tax in return for exempting greenhouse gases from the Clean Air Act, concluding that if regulation is going to happen, a simple tax is better for them than complex Clean Air Act regulatory measures. I think that this would generally be a good idea, but I’m not getting my hopes up.